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1969 Supreme(Ori) 313
IN THE HIGH COURT OF ORISSA
B.K. Patra, J.
TIRAMAREDDI SATYANARAYAN - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revision No. 239 of 1967
Decided On : 01-01-1969
D.P. Mohapatra and G.B. Patnaik, for the Appellant; N.V. Ramdas, for the Respondent
Mere speculative opinion of the Motor Vehicle Inspector that the Petitioner might have been driving the vehicle in the third gear at the time of accident cannot certainly form the basis of a prosecution under Sections 279, 337, 338 and 304-A, Indian Penal Code because the basis for a conviction under any of these sections is a rash and negligent act.
Headnote:
CRIMINAL LAW - RASH AND NEGLIGENT ACT - SECTIONS 304-A, 337, 338 AND 279, INDIAN PENAL CODE - DRIVER OF A PASSENGER BUS CONVICTED OF CAUSING DEATH AND INJURIES DUE TO NEGLIGENCE - CONVICTION SET ASIDE ON APPEAL - NO EVIDENCE TO SUPPORT FINDING OF RASHNESS AND NEGLIGENCE - DRIVER NOT DRIVING IN THIRD GEAR AS ALLEGED - FAILURE TO CHANGE TO LOAD GEAR NOT NEGLIGENCE - ACQUITTAL.
Fact of the Case:
The petitioner, a driver of a passenger bus, was convicted of causing death and injuries due to negligence under Sections 304-A, 337, 338, and 279 of the Indian Penal Code. The accident occurred when the bus rolled down backwards and fell into a ditch, killing one passenger and injuring several others. The prosecution alleged that the petitioner was driving the bus in third gear, which was negligent, and that he failed to change to load gear when the engine could not pull the vehicle.
Finding of the Court:
The court found that there was no evidence to support the finding of rashness and negligence on the part of the petitioner. The court noted that the petitioner was an experienced driver and that it was unlikely that he would have been so foolhardy as to drive a fully loaded vehicle over an upgradient in third gear. The court also found that there was no evidence that the petitioner was driving the vehicle rashly.
Issues: Whether the petitioner was driving the bus in third gear, which was negligent, and whether he failed to change to load gear when the engine could not pull the vehicle.
Ratio Decidendi: The court held that negligence means breach of a duty caused by omission to do something which a reasonable man guided by these considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. Nothing proved in this case would show that the Petitioner was negligent. A mere speculative opinion of the Motor Vehicle Inspector that the Petitioner might have been driving the vehicle in the third gear at the time of accident cannot certainly form the basis of a prosecution under Sections 279, 337, 338 and 304-A, Indian Penal Code because the basis for a conviction under any of these sections is a rash and negligent act.
Final Decision: The court allowed the appeal, set aside the conviction of the petitioner, and directed that he be acquitted.
JUDGMENT :
B.K. Patra, J. - The Petitioner was convicted under Sections 304-A, 337, 338 and 279, Indian Penal Code in the Court of the Sub-Divisional Magistrate Rayagada and sentenced to rigorous imprisonments for six months, two months, six months and two months respectively under each of the aforesaid four counts, the sentences to run consecutively.
2. The Petitioner is a driver and for 7 to 8 years before the occurrence which took place on 8-4-1965 was driving passenger buses on the Jeypore, Rayagada section. On 8-4-1965, he was driving a passenger bus from Rayagada to Jeypore. There were 47 passengers in the bus by the time it reached a place known as Gumma. Shortly after the bus left Gumma it reached the Ghat section of the road, the upgradient there being 1" ? 18". As the bus reached the top of the gradient, the engine failed to pull up the vehicle. The Petitioner tried to change to load gear but the bus started to roll down backwards. The Petitioner advised the cleaner of the bus to place a stone under the wheel and it was done. Simultaneously the driver also applied brakes but despite all these, the bus rolled down backwards for about 30 yards and fell down into a ditch on its left side. When the bus rolled down backwards one of the passengers jumped down from the vehicle and fell down under it and was crushed to death. Several other passengers also received injuries. As the injured persons were being transported to Rayagada in another vehicle, one of them died on the way. That very evening p.w. 7 the Motor Vehicle Inspector, Koraput inspected the vehicle at the place of accident. He found that engine oil was thrown outside and underneath the vehicle, and that the hand brake was not working and was ineffective. The booster cylinder pipe was found detached from the cylinder. He was of opinion that at the time of accident the driver might have been driving the vehicle in third gear but when the engine could not pull the vehicle in that gear, be attempted to change into higher gear but he could not succeed and in the meantime the engine stopped and the vehicle started rolling backwards. Again when the driver tried to engage the gear, due to backward motion of the vehicle the engine started in reverse direction causing the engine oil to be thrown out of the engine and smoke coming out of the engine. The foot brake which appeared to be in good condition was not effective due to the starting of the engine in reverse direction. He was ultimately of opinion that if the driver had changed into higher gear a little earlier, the vehicle might not have met with such a serious accident. After necessary investigation, the Petitioner was put on trial on the charges mentioned above.
3. The Petitioner pleaded not guilty and stated that at the time when the accident occurred he was driving the vehicle in the first gear. When the engine could not pun, the vehicle, he tried to put it on the load gear but the engine gave a jerk and stopped. He then applied self a starter and tried to put it on the load gear but it did not work. As by that time the bus had started rolling down, he asked the cleaner to put a big stone under the wheel. That was done but the vehicle did not stop and rolled down.
4. The Courts below held that the Petitioner was trying to negotiate the stop climb in the third gear and when the engine could not pull he tried to switch over to the load gear and failed. They thought that the bus being a heavy vehicle loaded with 50 persons, it was the bounden duty of the driver to exercise ordinary prudence and caution and put the vehicle in the load gear so that it could pun up the vehicle. His failure to do so was considered to be a rash and negligent act which resulted in the unfortunate death of two persons and injuries to many others. In this view of the case, they convicted the Petitioner.
5. That an accident of the nature described above took place at the Ghat section of the Rayagada-Jeypore road on the (sic) of April, 1965 is no
